Terrorism Trials Modeled after Tribunals of WWII

Article excerpt

Byline: Frank J. Murray, THE WASHINGTON TIMES

Pentagon officials yesterday said military tribunal trials for al Qaeda and Taliban leaders will resemble the Nuremberg war-crime trials.

Defense Secretary Donald H. Rumsfeld insisted the trials of accused terrorists won't be "kangaroo courts."

"They're fair and balanced and justice will be served by their application," Mr. Rumsfeld said as he issued final rules for a new military justice system.

But Mr. Rumsfeld's top policy and legal advisers backed away from claims the Supreme Court cannot intervene, despite President Bush's order that defendants "not be privileged to seek any remedy or maintain any proceeding ... in any court of the United States."

"It's not within our power to exclude the Supreme Court from the process," Pentagon policy director Douglas Feith said.

"Far be it from me to tell the Supreme Court not to do something," echoed Pentagon General Counsel William J. Haynes II, who expects Afghan-based terrorists will have vigorous lawyers who "seek every avenue they can to protect the interests of their client."

Among provisions for the quasi-public tribunals is a process allowing the presiding officer to arrange witness-protection measures that may include testifying by telephone or remote television, closing the court during testimony, and using false names.

"Any sentence made final by action of the president or secretary of defense shall be carried out promptly," say the Pentagon rules, which do specify what offenses may be charged or indicate which are punishable by death.

Battlefield prisoners acquitted of war crimes, terrorism or being unlawful combatants should not expect quick release, Mr. Haynes cautioned.

"We are within our rights, and I don't think anyone disputes it, that we may hold enemy combatants for the duration of the conflict. And the conflict is still going and we don't see an end in sight right now," Mr. Haynes said.

Rules for the tribunals will admit evidence that federal courts would throw out, allow plea bargaining, presume defendants innocent until proven guilty "beyond a reasonable doubt," and require unanimous votes by a seven-member court for death sentences. Sensitive information may be kept secret from defendants and civilian lawyers, but not from appointed military lawyers.

The policies grant extensive powers to the defense secretary. He is the "appointing authority" to assign prisoners for trial, chooses members for tribunals and review boards, and is the final arbiter of convictions except for the president.

Convictions automatically will be reviewed by three-member review boards that are limited to returning a case to the tribunal or recommending action by the defense secretary. …